People v. Hempfling

• Citation: 70 Misc.3d 404,134 N.Y.S.3d 687
• Decision Date: 26 October 2020
• Docket Number: 19110374
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Michael HEMPFLING, Defendant.
• Court: New York County Court

70 Misc.3d 404
134 N.Y.S.3d 687

The PEOPLE of the State of New York, Plaintiff,
v.
Michael HEMPFLING, Defendant.

19110374

Justice Court, New York.

Decided on October 26, 2020

134 N.Y.S.3d 688

Sandra Doorley, District Attorney, Monroe County (Janna Koch, of Counsel), for plaintiff.

Alex N. Serles, Esq., for defendant.

Thomas J. DiSalvo, J.

70 Misc.3d 405

History of the Case .

The defendant was charged with common law driving while intoxicated ( VTL § 1192 [3] ), driving while ability impaired by drugs ( VTL § 1192 [4] ), driving while ability impaired by the combined influence of drugs of alcohol and any drug or drugs ( VTL 1192 § [4-a] ) and criminal possession of a controlled substance, 7th Degree, (PL § 220.03), which were alleged to have occurred on November 19, 2019 at 12:38 A.M. on Phillips Road in the Town of Webster. The defendant was arraigned on December 4, 2019 accompanied by his attorney. At that time the court was presented with a Report of Refusal to Submit to Chemical Test. As a result, this court suspended the defendant's license pending a hearing at the New York State Department of Motor Vehicles. The case was adjourned for argument of motions to February 19, 2020. At that time the court granted defense counsel's motion for a Huntley hearing and a probable cause hearing to be conducted on March 27, 2020. However, prior to said hearing date the court system was shut down due to the COVID-19 virus. Upon the re-opening of the court, the said hearings were rescheduled and conducted on September 25, 2020. At the conclusion of said hearings the court denied defense counsel's motion to suppress any statements made by the defendant, but reserved decision relative to the probable cause issues. Prior to the commencement of the suppression hearings the charge of criminal possession of a controlled substance, 7th Degree, (PL § 220.03) was withdrawn by the People.

Facts of the Case .

The People called Webster Police Officer Skyler Miller as their only witness at the aid suppression hearings. Officer

70 Misc.3d 406

Miller testified that he has been trained in the area of the recognition of intoxicated drivers. In addition he has been a drug recognition expert since March of 2017. Just after midnight on November 19, 2019 he had been on routine patrol when he observed a green Ford pick up truck on the west shoulder of Phillips Road. He originally drove past the vehicle. He observed that the vehicle was running and the exterior lights of said vehicle were illuminated. The officer parked his car and observed the vehicle in question for about five minutes. Since he observed no activity from inside the truck he pulled up behind it. At that time the officer called out to dispatch for a possible disabled vehicle. He then got out of his patrol car and approached the defendant's vehicle from the driver's side. The officer used his flashlight to illuminate the inside of the truck. He observed keys in the ignition, that the area of engine was hot and the driver was slumped over and sleeping in the driver's seat. As a result, Officer Miller tapped on the driver's side window for a few minutes making several attempts to wake up the driver. Eventually the driver did wake up, but it took about thirty seconds for the driver to orientate himself. At that point the defendant was

134 N.Y.S.3d 689

asked to produce his license and identification, which he did. However, the officer testified that the driver did exhibit difficulty in producing same. The defendant indicated that he was driving home and that he was driving to East Webster from Webster. The officer observed various indicia of intoxication, to wit: bloodshot, watery eyes, dilated eyes, slurred speech and a strong odor of alcoholic beverages emanating from the vehicle. At that point the officer directed the defendant to exit the truck. The defendant refused to do so two times and demanded that the officer return his license. Upon the third request the defendant exited the truck, but hung on the driver's door while doing so. The officer patted down the defendant for weapons. In so doing the officer felt a metallic object in the defendant's right pants pocket. A metallic vaporizer with a glass cartridge attached with a yellowish wax like substance was found and removed from the defendant's pocket by the officer. Soon thereafter the defendant admitted that the substance was going to test positive for concentrated cannabis. He also admitted that he smoked it three hours prior to leaving his house. The defendant denied any consumption of alcohol or taking any drugs. The officer then permitted the defendant to sit on the front bumper of his patrol car due to the difficulty the defendant was having walking and standing. The

70 Misc.3d 407

officer then proceeded to have the defendant complete some roadside field sobriety tests. The first test was the horizontal gaze nystagmus, wherein the defendant was said to have displayed six of the six clues in both eyes, but was negative for vertical nystagmus. The defendant was unable to complete the walk and turn test. In fact the defendant fell backward onto the police care three times during the initial start of said test. He then reportedly refused to complete any further roadside tests. The defendant was then arrested for the charges herein. The defendant agreed to perform the breath test as set out in VTL § 1194 (1) (b). The officer testified that the said test was positive for the presence of alcohol. The defendant was then transported to the Webster Police Department, where he was asked to take the chemical breath test. As previously indicated, the defendant refused to submit to the chemical breath test. Based on the condition of the defendant the police made a mental health arrest. Whereupon the defendant was transported to and subsequently released to Rochester General Hospital after he was provided with an appearance ticket relative to the charges set out above.

Issues Presented.

Was the officer authorized to approach the defendant's parked vehicle, whose engine was running with its exterior lights on?

Did the officer have authority to direct the defendant to exit his vehicle?

Was the officer authorized to pat down the defendant and to remove the contents of his pockets?

Was there probable cause to arrest the defendant?

Legal Analysis .

Approach of the Vehicle . "An officer may approach a parked car for an objective, credible reason, not necessarily indicative of criminality (see People v. Harrison , 57 N.Y.2d 470, 475–476, 457 N.Y.S.2d 199, 443 N.E.2d 447 ; People v. Karagoz , 143 A.D.3d 912, 913, 39 N.Y.S.3d 217 )." ( People v. Eugenio , 185 A.D.3d 1050, 128 N.Y.S.3d 233, 235 [2nd Dept. 2020] ). In this case the officer observed the parked vehicle on the side of the road with its motor running for about five minutes. The officer could not observe any movement from inside of the truck. As a result, he pulled up behind said truck. At that time he called dispatch to report a possible

134 N.Y.S.3d 690

disabled vehicle. Upon doing so he exited his patrol car and approached

70 Misc.3d 408

the drivers side window, where he observed the driver to be slumped over and asleep. Under these circumstances Officer Miller had an objective and credible reason to approach the driver and inquire of him if there was a problem, such as medical or mechanical.

"The approach of occupants of a stopped or parked vehicle to request information is analyzed under the first tier of the De Bour hierarchy (see, People v. De Bour , 40 N.Y.2d 210, 222–223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ) and need only be justified by an ‘articulable basis’... All that is required is that the intrusion be ‘predicated on more than a hunch, whim, caprice or idle curiosity’ ( People v. Ocasio , supra, at 985, 629 N.Y.S.2d 161, 652 N.E.2d 907, citing People v. De Bour , supra, at 217, 386 N.Y.S.2d 375, 352 N.E.2d 562 )." ( People v. Grady , 272 A.D.2d 952, 708 N.Y.S.2d 765 [2000] )

Directing the Defendant to Exit His Vehicle . In an effort to get the driver's attention he tapped on the window a number of times, whereupon the driver eventually woke up. The driver did not immediately respond, but took about thirty seconds before he rolled down the window to speak to Officer Miller. The officer did not immediately order the defendant from the vehicle. Instead, the officer inquired of the driver as to what he was doing. The individual seemed to be confused indicating that he was driving to home to "East Webster" from Webster.¹ In addition, the driver displayed various indicia of intoxication as previously indicated. It was not until then that the officer ordered the defendant out of the truck.

The facts in People v. Eugenio, 185 A.D.3d 1050, 128 N.Y.S.3d 233, 235 [2nd Dept. 2020] are remarkably similar to the case herein. The court stated as follows:

"At a suppression hearing, a police officer testified that, while on patrol on November 12, 2017, he observed an individual who seemed to be passed out behind the

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